Madras High Court
P. Ajeetha vs Satya Prakash And Others Reported In ... on 27 June, 2008
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2008
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
Writ Petition Nos.36903 and 36904 of 2004
P. Ajeetha .. Petitioner in W.P.No.36903 of 2004 K. Muthulakshmi .. Petitioner in W.P. No.36904 of 2004
v.
1. The Director General of Police,
Central Reserve Police Force,
Lodhi Complex, New Delhi.
2. The Inspector General of Police,
Southern Sector,
Central Reserve Police Force,
Hyderabad.
3. The Deputy Inspector of Police,
GC, Central Reserve Police Force,
Avadi, Chennai. ... Respondents in both W.P.s
Petition are filed under Article 226 of the Constitution of India praying for the issuance of writs of Mandamus directing the respondents to issue selection order to the petitioner on the basis of merit seniority in the waiting list for the post of Constable/G.D. In Central Reserve Police Force as per the result published on 14.09.2004 in "Dinamani" News Paper (Chennai Edition).
For petitioners : Mr. R. Margabandhu
For respondent : Mr. G.Sankaran, SCGC
COMMON ORDER
The petitioners in both the writ petitions have sought for a Writ of Mandamus directing the respondents to issue selection orders to the petitioners on the basis of their merit/seniority in the waiting list for the above said post, as per the result published on 14.9.2004 in Dinamani News paper (Chennai Edition) and for further orders. As common question of facts and law are involved in both the writ petitions, they are taken up together and disposed of by this common order.
2. Pursuant to the advertisement, for recruitment to the post of constable/GT for Central Reserved Police, 2003-2004, both the petitioners applied for the post. The petitioner in W.P.No.36903, P.Ageetha was issued hall ticket No. 1 and belongs to OBC category. The petitioner in W.P.No.36904/2004 K.Muthulakshmi was issued hall ticket No.15544 and she belongs to MBC category. Written examination was held on 11.1.2004. Both the petitioners have passed written test, medical test held on 12.1.2004 and participated in the oral test conducted on 13.1.2004.
3. The petitioners have submitted that 18 posts were reserved for women. The results of selection was announced in Dinamani News paper on 14.9.2004. Fifteen persons were given selection orders. 18 candidates were placed in the waiting list. The petitioner in W.P.No.36903 of 2004 was placed in the second position, out of 18 waiting list candidates in the general category. Likewise, the petitioner in W.P.No.36904 was placed in the 3rd position. Since there were 18 vacancies, out of which only 15 were filled up, the petitioners ought to have been considered. Three posts were referred to OBC Ex-servicemen category. Totally, 16 seats were announced to be filled up by women candidates. At the time of filing the writ petitions, the petitioners were not aware of the category wise selection. Later on, they came to know that only one candidate has been selected as against the 8 posts reserved for general ex-serviceman category and remaining 7 posts were not filled up. As the petitioners are in higher position in the waiting list, they should have been accommodated, but they are not aware the reasons for not being selected to the posts.
4. The petitioners have further submitted that from the counter affidavit, they came to know that only one post was reserved for schedule Tribe category. Under Scheduled Caste category, as against 4 posts advertised, seven candidates have been selected, exceeding the quota reserved for them and therefore three persons belonging to schedule caste category have to be removed from the selection list. The lone post reserved for schedule tribe candidate has not been filled up. The petitioners have further submitted that only three posts were advertised for candidates belonging to OBC category. But against the said reservation, 11 candidates have been issued with selection orders.
5. The petitioners have further submitted that the respondents are attempting to fill up the remaining three vacancies. According to them, three candidates with Hall Ticket Nos.15524, 15535 and 15544 alone should be selected and no other candidate is eligible to be considered for selection. As the waiting list would lapse after three months, ie., on 14.12.2004, the respondents ought to have issued the selection orders to the petitioners. Since no orders were passed, on 19.12.2004, the petitioners have preferred these writ petitions for the relief as stated supra. In both the writ petitions, the petitioners have submitted that as they hold higher positions in the waiting list of candidates belonging to the general category, the respondents should not prefer any other candidates ignoring their names.
6. In the additional affidavits permitted to be filed by an order dated 4.7.2007 in W.P.M.P.No.21809 and 21810 of 2005, the petitioners have submitted that as per the advertisement made in Dinamani, dated 11.10.2003, annexed to the miscellaneous application, the respondents have notified sixteen posts for women for Tamil Nadu, out of which, eight posts were reserved for general and ex-service women category, four posts were reserved for Schedule Caste and ex-servicemen category, one post for Schedule Tribe Ex-Service men category and three posts for OBC Ex-service women category. Since eleven candidates were selected in the OBC category as against three vacancies, the selection of excess persons has to be cancelled. It is also the case of the petitioner that though the advertisement is only for 16 candidates, 19 persons have been appointed.
7. In the affidavit filed in support of the M.P.Nos.2164 and 2165 of 2007, the petitioners have submitted that in the call letter only 25 marks were allotted for physical test and 50 marks for written test. Nothing has been mentioned about the marks to be awarded in the oral test to the candidates. The marks earmarked for oral test was also not mentioned in the advertisement. According to them, physical test was conducted on 7.1.2004, written test on 9.1.2004, medical test on 11.1.2004 and the results were affixed in the notice board on 11.1.2004. The petitioner in W.P.No.36903 of 2004 was placed first in the list. Muthulakshmi, petitioner in W.P.No.36904 of 2004 was placed at 5th position and both of them were informed by the officer that they are selected and that selection cards would be sent to them.
8. Pursuant to the selection list signed by the officers on 6.2.2004, results were published on 14.9.2004. From the paper publication, it is evident that only one candidate was shown to have been selected out of 8 candidates in general list. The petitioners have alleged that the selection list itself has been prepared after the publication of the result on 14.9.2004. According to them, the selection list produced before this court is not the original selection list and does not contain the details relating to physical test, written test and marks awarded for oral test if any conducted.
9. The petitioners have further contended that J.Sudha, daughter of Jayaraman, belonging to OBC category and secured only 55 marks, she has been selected, whereas, G.Lakshmi, daughter of Gurusamy, belonging to the same category, though she has secured 56 marks has not been selected, and was kept in the waiting list of general category. Ajeetha, daughter of Padmakaran, who has secured 62 marks has been selected as the first candidate in the OBC category. Though oral interview was not conducted, the respondents have awarded 14 marks each to Rekha, daughter of Devarajan and Ajeetha, daughter of Padmakaran, a CRPF employee. Likewise Arthi, daughter of Muthu Chidambaram has been awarded 18 marks in the oral test so as to accommodate her, though she had secured only 19.5 marks in the written test. Ajeetha, the petitioner in W. P. No. 36903 of 2004, who had secured 20 marks in the written test was awarded only 9 marks in the oral test. Similarly, Ms.Muthulakshmi, the petitioner in W.P.No.36904 of 2004 has secured 17.5 marks in the written test, but was awarded only 12 marks in the oral test.
10. According to the petitioner, the whole selection is vitiated due to excess representation of candidates as against the number of posts reserved for OBC and schedule caste categories. The petitioners have prayed that the entire selection has to be set aside and in case, the Court is not inclined to quash the list, atleast the petitioners should be accommodated, in addition to the normal intake of CRPF constables as per the decision of the Supreme Court reported in AIR 1981 SC 487.
11. The third respondent in the counter affidavit has submitted that the Inspector General of Police, Southern Chennai CRPF, Hyderabad, the second respondent has issued a letter No.R-II-5/2004 Admin-3 (22) dated 15.9.2003 and released 16 vacancies for the post of constable/GD (Mahila) CRPF from candidates belonging to Tamil Nadu and Pondicherry. Out of 16 vacancies, 8 vacancies were allotted for general category, four for schedule caste category, three for OBC and one for schedule Tribe category. Accordingly, advertisement was made in all leading news papers and applications were invited from eligible female candidate belonging to Tamil Nadu and Pondicherry. The petitioners' applications were found to be in order and they were issued with call letters to appear before recruitment on 7.1.2004 at Nethaji Stadium, near police recruitment training centre, Vellore. They were allotted role numbers 15544 and 15535 respectively. Both the petitioners reported at Vellore and attended various tests. The recruitment process was completed on 12.1.2004. As per the Recruitment Board proceedings, petitioner Ms.Muthulakshmi secured 44.5 marks out of 100 marks and on the basis of the marks obtained, she was placed at serial No.45 in the merit list. Ajeetha, petitioner in W.P.No.36903 of 2004, secured 52 marks out of 100 marks and she was placed at serial No.19 in the order of merit. After completion of recruitment process at Vellore and Trichy a combined list belonging to state merit list, was prepared on the basis of merit and category wise. 86 female candidates qualified in the test were arranged. Merit list of all the selected waiting listed candidates were published in all leading news papers in Tamil Nadu. One vacancy meant for schedule caste category remained unfilled.
12. Due to non-availability of Schedule Tribe candidate, the remaining 15 female candidates were issued with orders of appointment as per the merit list and appointed as constables/GD in CRPF. Thereafter no order of appointment was issued for filling up any vacancy meant for female candidates from the wait listed candidates under the general category published in the news paper, in numerical serial only and not as per the merit seniority. Therefore the contention of the petitioner that they were placed at positions 2 and 3 in the merit list for general category is not correct. Roll Nos.15524, 15535 and 15544 are not at all in the higher order of merit list. Since the vacancies have already been filled up, the question of trying to fill up the remaining three vacancies does not arise. As per instructions, the merit list of the candidates who were qualified in all respects, but could not be appointed due to non-availability of the vacancies in respect of the categories was prepared. The list shall be maintained for three months from the date of empanelment and that it would lapse automatically on completion of three calendar months. The respondents have further categorically submitted that the total number of vacancies were only 16, including one post reserved for schedule tribe category, which remained unfilled, due to non-availability of a suitable schedule tribe candidate in the merit list. The number of posts notified as per advertisement made in news papers is 16 and not 18 as contended by the petitioners.
13. It is further submitted that the petitioner Muthulaskhmi who secured 44.5 marks was placed in the merit list at Serial No.45 and Ms.Ajeetha, petitioner in W.P.No.36903 of 2004, who secured 52 marks was placed at 19th position in the merit list respectively. Therefore the contention of Ms.Ajeetha that she was placed at 17th position in the over all merit list and at second position in the waiting list is not correct.
14. In the counter affidavit filed in July 2007, the respondents have further submitted that as per instructions contained in Government of India, Department of Personnel and Training, NO.3612/13/88, Establishment (SCT) dated 22.5.89, it is emphasised that SC/ST/OBC candidates who are in the merit list of general category on their own and who do not seek any relaxation, will be treated as general category and will not be adjusted against the reserved vacancies. The respondents have submitted that the above said instruction was strictly followed in the matter of selection of candidates for the post of constables/GD/CRPF and that the recruitment was done according to the Government of India instructions. They have also submitted that since the petitioners have not secured the required marks for selection, in their respective communitywise categories and since the vacancies have already been filled up with the selected candidates, they are not entitled to the relief sought for in the writ petitions and therefore prayed for dismissal of the writ petitions.
Submissions advanced by the learned counsel are as follows:
15. Though the petitioners have sought for a writ of Mandamus directing the respondents to issue selection orders to the petitioners on the basis of their merit seniority in the waiting list for the post of constables in Central Reserve Police, Mr.R.Margabandhu, learned senior counsel for the petitioner advanced his argument virtually attacking the entire selection. According to him, the selection list dated 14.9.2004 published in Dinamani Newspaper has to set aside for the irregularities committed in the process of empanelling the candidates. He further submitted that while preparing the list of selected candidates for Vellore and Trichy circle, there are interpolations and variations which disclose malpractice in the selection. Referring to the various list enclosed in the typed set of papers from pages 28 to 41, he submitted that in the first list of candidates, the respondents have furnished only written marks and total marks secured by the candidates, and they have not given the physical test marks or the interview marks. In the second list at page 32, the respondents have not given the marks for six candidates at Sl.Nos.2,6,7,9,13 and 15. Marks secured by the candidates from Vellore Circle alone were given in the said list. In the third list, the respondents have not given any details relating to the marks secured by the candidates from Trichy circle and the marks secured by those candidates in the physical efficiency test and in the interview were not given. Referring to the manner of preparation of merit list of the selected candidates, he submitted that when the above said irregularities were pointed out, the respondents in order to justify the selection have manipulated the records and subsequently awarded marks by filling up the relevant columns.
16. Referring to the enclosure at page 48 of the typed set of papers, learned counsel for the petitioner submitted that S.Sandhya, Sl.No.10 in the selection list dated 14.9.2004 has been wrongly selected, though she has secured only 54 marks in the selection. He further alleged that there is a variation in the marks awarded to her and it has been increased to 62, so as to include her name in the list of selected candidates. He further submitted that when the candidates, viz., Ajeetha, Juspin Mini and Sudha serial Nos.5,11 and 12 in the selection list, dated 14.9.2004 were already selected under the OBC category, in order to favour S.Sandhiya, extra marks seemed to have been awarded by the respondents and she has been accommodated in the general category. Referring to 5th list of candidates at page 42 of the typed set of papers, learned counsel for the petitioner submitted that the name of S.Sandhiya has been included, as if she has been selected, though she has secured lesser marks. The learned counsel for the petitioner further submitted that the selection of Gandhimathi, SI.No.7, Roll No.72125, D.Salina, Sl.No.8, Roll No.16016 and Karthika, SI.No. 9, Roll No.75016, all belonging to OBC category, against the vacancies meant for general category is illegal.
17. Inviting the attention of this court to the community certificate issued by the Tahsildar, Mambalam-Guindy Taluk, Chennai dated 30.1.2004, learned counsel for the petitioner submitted that when candidate G.Lakshmi Roll No.15921 in the combined merit list of female candidates, belonging to backward class has secured 56 marks, she should have been selected in the place of J.Sudha SI.No.11, Roll No. 15577 in the merit list, dated 14.9.2004, who had secured only 55 marks against the vacancy earmarked for B.C. Category and that J.Lakshmi has also been wrongly described as a candidate belonging to general category in the combined merit list drawn on 6.2.2004.
18. The learned counsel for the petitioner further submitted that the respondents have not followed the pattern of awarding the marks, as per the notification and therefore the selection is illegal. According to him, as per the notification,the candidates qualified in the physical efficiency test were allowed to write the Written test, for which the maximum prescribed mark was 50. The marks prescribed for the physical efficiency test was 25. The advertisement did not speak about any marks for interview or oral test. Even assuming that 25 marks were earmarked for the interview, it is contrary to the judgement of the Supreme Court. Learned counsel for the petitioner further submitted that even assuming that the department had allocated 25 marks for the interview, awarding 5 marks under the head "Special qualification", is not at all stated in the counter affidavit and therefore, the award of marks is contrary to the pattern of awarding marks and if 5 marks are added, the total marks for the entire selection would come to 105 (Written test - 50 marks + physical Efficiency Test - 25 + Interview - 25 + Special Qualification - 5 marks) and therefore the procedure followed for awarding the marks especially, Interview + Special Qualification, is only to facilitate certain candidates to be selected and therefore there is an irregularity committed by the respondents in the process of selection.
19. Finally, learned Senior counsel submitted if the court is not inclined to set aside the selection, instead of quashing the list, the petitioners may be accommodated as police constables in the Central Reserve Police in addition to the normal intake of CRPF.
20. Per contra, Mr.G.Sankaran, learned Standing Counsel for Central Government appearing for the respondents submitted that the selection for the post of constable has been done in accordance with the procedure and as per the advertisement. Referring to the prayer made in the Writ Petitions, learned counsel for the respondents submitted that when the petitioners have sought for a Writ of Mandamus to issue selection only on the basis of merit seniority in the waiting list for the post of constables/GD in CRPF and having participated in the process of selection and gone through the interview and other tests, it is not open to the petitioners to attack the procedure followed in the Selection process and consequently challenge the very selection itself. Referring to the counter affidavit, learned counsel for the respondents submitted that out of 16 vacancies for the post of constables/GD Mahila, eight vacancies were allotted for general category, four for Scheduled Caste candidates, three for OBC and one post of ST category were allotted. He further submitted that after the completion of selection at Vellore and Trichy, a combined seniority list was prepared and 86 female candidates qualified in the test were arranged in the descending order of marks secured by them. He further submitted that candidates belonging to SC and OBC categories, secured more marks than the candidates belonging to general category and therefore they were selected as against the vacancies meant for general category and such procedure is not illegal. The selection of the candidates belonging to OBC/SC, as against the vacancies reserved for general category candidates cannot be said to be in excess of the notified vacancies.
21. Referring to the various lists in the typed set of papers, learned counsel for the respondents submitted that on 6.2.2004, a combined merit list was prepared in the descending order of merit consisting of all the categories namely General, OBC and SC. Apart from the overall merit list, candidates belonging to the respective communitywise categories, were also arranged in the order of merit and separate merit lists were prepared community wise, i.e., General, OBC, SC. OBC candidates, who claimed age relaxation as per the advertisement were granted relaxation and they were included in the list of OBC candidates. Referring to the office memorandum dated 12th December, 1996 issued by the Ministry of Home Affairs, the learned counsel for the respondents further submitted that if SC/ST/OBC candidates, who are in the merit list of the general category on their own merits without availing any relaxation will be treated as general candidates and will not be adjusted against the reserved vacancies. Learned counsel for the respondents submitted that though P.Ajeetha D/o.K.Padmakaran, SI.No.5 Roll No.15695 had secured 62 marks, she was selected only against OBC category, for the reason that relaxation was granted in her favour.
22. Referring to the Manual of recruitment for the Central Reserve Police Force, learned counsel for the respondents submitted that 50 marks were allotted for written test, 25 marks are allotted for Physical Efficiency Test and out of the remaining 25 marks, 10 marks were allotted to the Special Qualification possessed by the candidates appearing for the selection. He further submitted that the petitioners were also awarded marks for Special Qualifications possessed by them and therefore there was no irregularity in awarding the marks to the other candidates, who were selected. As regards S.Sandhiya, learned counsel for the respondents submitted that the enclosure at page No. 48 of the typed set of papers was a candidate from Madurai Circle and she was not selected. The confusion in the communication dated 7th September, 2007 sent by the Commandant 135(M) BN CRPF, Gandhi Nagar, Gujarat to the Additional Inspector General of Police, Group Centre, CRPF, Avadi, Chennai, was only due to the same name with the same initial and therefore the petitioner cannot take advantage of the same and claim as if a wrong person has been selected by awarding extra marks.
23. In so far as the non selection of Lakshmi Serial No.10, Roll No.15921, learned counsel for the respondent submitted that the said candidate was treated as general candidate, as she had not claimed any relaxation in terms of the advertisement applicable to that community.
24. Learned counsel for the respondents further submitted that the cut of marks as per the selection list for the three different categories are as follows: General : 58; OBC:55 ; SC : 45. Both the petitioners have secured marks less than the cut of marks prescribed for candidates, belonging to their community and they were not within the zone of consideration and therefore, their case could not be considered for selection. Both the petitioners have not secured adequate marks to be included in the Selection List, either in OBC category or under the general category and therefore they were not selected for the post of constables.
25. Reiterating the contentions in the counter affidavit, he further submitted that the selection has been done in accordance with the advertisement and the recruitment manual. Out of 16 posts advertised, 15 of them, were already sent for training and one post ear marked for schedule Tribe category could not be filled up, due to want of eligible candidate and as the vacancies have already been filled up, the petitioners cannot be accommodated by way of additional intake and hence, prayed for dismissal of the writ petitions.
Heard the learned counsel appearing for the parties and I perused the materials available on record.
26. The Central Reserve Police have notified for selection of constables/GD (Mahila) from candidates in Tamil Nadu. As per notification 8 posts were reserved for general category + ex servicemen, 4 posts were reserved for S.C. Category, three posts for OBC category and one post for ST category. As per notification, candidates who qualified in the physical efficiency test will be required to appear in written test. 25 marks were earmarked for physical efficiency test. The call letter issued to the candidates directing them to appear before the recruitment on 7.1.2004 at Nethaji Stadium, Vellore, discloses that the candidates have to undergo physical efficiency test and the events for assessing their efficiency, are 800 meter Running, High jump and long jump. The distribution of the marks are as follows:
Test Distribution of Marks 800 Meter race upto 3 minutes 30 seconds Above 3 minutes 30 Sec. Upto 3 minutes 45 Sec.
Above 3 minutes 45 Sec. Upto 4 minutes 12 Marks 08 Marks 04 Marks High Jump 4 feet and above 3 feet 6 inches upto below 4 feet 3 feet upto below 3 feet 6 inches 07 Marks 05 Marks 03 Marks Long Jump 13 feet and above 11 feet to below 13 feet 09 feet to below 11 feet 06 Marks 04 Marks 02 Marks
27. The Method of selection in the Central Reserve Police is governed by the orders/instructions issued by the Government and the Director General, CRPF from time to time. CRPF Recruitment Manual corrected upto 19.04.2006 and published under the Authority U.O.No.4692/75-Per.1, dated 20th June, 1975, Ministry of Home Affairs, Government of India, was produced before this Court. It contains the method of selection for the post of enrolled followers in Group D upto the Gazetted Officers (A/Cs) in Group-A. Part 4 of Section 2 deals with the procedure and method of direct recruitment for Head Constables/Constables and it is set out in Clause 1.37. Selection will be made on the basis of the following:
"(i)Physical Measurement:
Candidates who are found eligible on screening of application will be screened first for height, chest and weight measurements by an officer before sending them for PET test and interview Medical Examination, written Examination.
(ii)Physical Efficiency Test:
The candidates who are found physically and medically fit for appointment will be required to pass the Physical Efficiency Test consisting 25 marks prescribed from time to time as Appendix-E.
(iii)Medical Examination:
The candidates will be medically examined to assess their physical and medical fitness as prescribed in the eligibility conditions. This examination will be conducted only after all other processes of selection viz., Physical measurement, PET/written test and interview is over.
(iv)Written Test:
a)The candidates who qualify in the PETs will be required to appear in a written test.
b)The written test will consist of one paper with a maximum of 50 marks where in 25 marks should be allotted for written test and remaining 25 marks for objective tests.
c)A maximum of 10 marks will be awarded to candidates, who have to their credit achievements in sports, adventure sports, NCC, Scout & Guides and other extra curricular activities. Claims of achievements should be supported by documents and participation should be atleast at State level.
d)The question paper will be set to assess the general awareness/general knowledge, knowledge of elementary mathematics, ability to observe and distinguish patterns and to test the basis knowledge of the candidates in English/Hindi. The papers can be answered either in Hindi or English.
e)The written test will be held immediately after PET is over for all those who qualify.
f)The candidates applying under the compassionate appointment scheme of the Government will not be required to appear in the written test.
v)Interview:
Maximum 15 marks. Interview shall be conducted after written examination. Candidates numbering 3 times the number of category wise vacancies allotted will be called for interviews as per merit. 1.38. Merit Lists Merit lists in each category namely, SC/ST, OBC and Ex-Servicemen will be drawn separately in respect of each State/UT on the basis of aggregate marks obtained out of 100 marks by the candidates as indicated below:-
1)The marks obtained in the written test.
2)Marks obtained for proficiencies and interview."
28. As per the advertisement and the Recruitment Manual, those who have qualified in the written test have to undergo medical examination. If found medically fit, they will be interviewed and thereafter they will be subjected to chest x-ray. The candidates have to produce the following documents in originals at the time of recruitment before board of officers. Reading of the advertisement and the recruitment manual, makes it clear that those who have qualified in the medical examination will be subjected to the personality and assessment of their calibre by the Board of Officers in the interview. The advertisement further reads that on the basis of total marks secured by the candidates in the physical efficiency test, written test, special qualification and interview, a merit list would be prepared and selection orders would be issued to the candidates after allotting the candidates as against the vacancies notified for the respective categories, namely General, OBC, SC and ST. Therefore it is evident that separate marks were allotted for physical efficiency test, written test, special qualification and for interview. Special qualifying marks have been awarded not only to S.Sandhiya, one of the selected candidates and it has been awarded to all those who possessed suitable qualification.
29. While Considering the allocation of seats and the preference claimed by OBC candidates for the purpose of placement, the Supreme Court in Union of India and another Vs. Satya Prakash and others reported in 2006 (4) SCC 550, at para 17 to 19, held as follows:
"17. This position has been made crystal clear in Ritesh R. Sah as referred to above that while a reserved category candidate entitled to admission on the basis of his merit, will have the option (preference) of taking admission in the college where specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.
18. By way of illustration, a reserved category candidate, recommended by the Commission without resorting to relaxed standard (i.e. on merit) did not get his own preference "say IAS" in the merit/open category. For that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust the quota of OBC category candidate selected under the relaxed standard. Such preference opted by OBC candidate who has been recommended by the Commission without resorting to the relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes. This is the mandate of the proviso to sub-rule (2) of Rule 16.
19. In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/ percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to the relaxed standard."
30. It is also worthwhile to extract some of the decisions of the Apex Court, extracted in Satya Prakash's Case (cited supra), "9. In our view, the present controversy is no more res integra in view of the judgment of this Court in Indra Sawhney v. Union of India. This Court at SCC p. 735, para 811 held as under:
"811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates." appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class butt so. long ash the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. l0. In R.K. Sabharwal v. State of Punjab, a Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-a-vis reservation and held at SCC p. 750, para 4 as under:
"4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserved category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/ Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition."
11. In Union of India v. Virpal Singh Chauhan it has been held by this Court (at SCC p. 705) that while determining the number of posts reserved for the Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.
12. This Court in Ritesh R. Sah v. Dr. Y.L. Yamul after considering the various decisions of this Court, as referred to above, has come to the conclusion at SCC pp. 261-62, para 17 as under:
"In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he' may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate!' (emphasis supplied)"
31. In Anil Kumar Gupta Vs. State of U.P., reported in 1995 (5) SCC 473, the Supreme Court, while considering the proper course for filling up the seats, under social reservation and special category reservation at para no. 20, held that " It is made clear that OC Category means merit list and no distinction shall be made among the candidates in OC list on the basis of their social status, because it is well settled to obtain a seat in the OC category on the basis of his merit.
32. It is now a well settled legal position that the candidates belonging to SC/ST/OBC who had secured more marks than the general candidates have to be treated as general candidates, if they do not avail any relaxation applicable to the respective communities. Office memorandum issued by the Ministry of Home Affairs dated 12st December, 1996 is in consonance with the above said legal position and it states that SC/ST/OBC who were in the merit list of general candidates at their own merit without availing any relaxation will not be treated as general candidates and they would be adjusted against the reserved vacancies Therefore out of 86 qualified candidates, 5 candidates, belonging to OBC community who have secured higher marks than the general candidates were rightly treated as general candidates and accommodated against the vacancies meant for general candidates. Similarly two persons belonging to schedule caste category who have secured first and third position in the combined merit list were also allotted berths in the general category. Thus out of 8 vacancies notified for open category candidates, 7 have been captured by 5 OBC candidates and 2 SC candidates and only one general category candidate Arthi, SI.No.4 Roll No.1589 could secure a post in the general category.
33. The marks secured by the candidates selected under Open Category, their roll numbers, community, etc., are as follows:
Sl. No., in the Select-ion list Name of the candidate Roll No. Community Marks secured 1 D.Rekha 16305 SC 73.05 2 F.Kumari 72124 OBC 70 3 A.Sudha 16415 SC 65 4 A.Arthi 15891 GEN 62.05 5 P.Ajitha 15695 OBC 62 6 S.Sandhya 72128 OBC 62 7 A.Gandhimathi 72125 OBC 59 8 D.Salina 16016 OBC 58
34. Similarly all the three candidates selected under the OBC category, viz., P.Ajitha, Sl.No.5, Roll No.15695, K.Jasphin Mini, Sl.No.10, Roll NO.15563 and J.Sudha, Sl.No.11, Roll No.15577, have secured more marks than the petitioners. They have secured 62, 56 and 55 marks respectively. The four Schedule Caste Candidates selected in the order of merit against the vacancies notified for them and the marks secured by them are as follows:
Sl. No. Name of the candidate Sl. No., in the Selection list Roll No. Marks secured 1 T.Sumathi 12 16443 53 2 K.Sasikala 13 74150 50 3 J.Vanitha 14 16532 46 4 M.Mariammal 15 74294 45
35. Following Madan Lal vs. State of J.K and others reported in 1995 (3) SCC 486, the Supreme Court at para 8 of the judgement in Trivedi Himanshu Ghanshyam Bhai Vs. Ahmedabad Municipal Corporation and others reported in 2007 (10) SBR 267, has held that candidates who do not figure in the merit and failed in the interview, are not competent to challenge the selection list.
36. In so far as the contention of the petitioners that S.Sandhya has been awarded extra marks to accommodate her in the general category though she has secured only 54 marks, a perusal of the relevant files produced before this Court disclose that the candidate who was actually selected was one S.Sandhiya, D/o.S.Sagadevan, who appeared from Trichy circle. The date of birth of the selected candidate is 24.4.1983, where as the candidate at page No. 48 of the typed set of papers is from Madurai Circle. The contention of the learned counsel for the respondent that while calling for the particulars of the selected candidates, by mistake the respondents have included the name of S.Sandhiya with Roll No.41646 is acceptable and it is to be noted that the mistake has subsequently been rectified.
37. Even if the petitioners were to be treated only as OBC candidates and not as general candidates as shown in the selection list dated 14.9.2004, they are no way near the cut of marks fixed for the OBC candidates and therefore they have no right to seek for selection as constables/GD Mahila in CRPF. As stated supra, category wise list has been drawn on 6.2.2004 and after collecting the marks awarded for written test/interview and special qualification, the final selection list has been prepared on 14.9.2004. The contention of the learned counsel for the petitioners that the final list has been subsequently manipulated and does not represent the community wise selection is without any basis. The petitioners having participated in the selection process have no locus standi to question the manner of selection. In fact the petitioners have also been awarded special qualifying marks and they cannot turn around and contend that they are not aware of the selection process. Reference can be made to the decisions of the Supreme Court in K.H.Siraj v. High Court of Kerala reported in 2006 (6) SCC 395 and Union of India v. N.Chandrasekaran reported in 1998 (3) SCC 694.
38. Combined reading of the advertisement and the recruitment manual, makes it clear that 25 marks have been allocated for Physical efficiency Test, 50 marks for Written Test, 10 marks for Special Qualifications and 15 marks for the interview. The contention of the petitioner that 25 marks have been exclusively for the interview and that it is contrary to the judgment of the Supreme Court is not tenable. Further, as per the recruitment manual, awarding marks for special qualification is permissible and therefore, the contention of the petitioner to the contrary is liable to be rejected. As per the procedure followed in recruitment, candidates belonging to the Most Backward Communities should be treated as Other Backward Classes and they cannot be treated as one belonging to General Category. If candidates belonging to SC/ST and OBC secure higher marks, and do not claim any relaxation or concession applicable to such class or community, they have to be accommodated against the vacancies earmarked for the general category, without there being any corresponding reduction in the number of vacancies reserved for such community. As per the Community Certificate enclosed at Page No.25 of the Typed Set of papers, Lakshmi, Sl.No.10, Roll No.15921, belongs to Hindu Maravar, OBC. Treating her as one belonging to general category is not proper. The decisions relied on by the learned counsel for the petitioners reported in AIR 1981 SC 487 is not applicable to the facts of this case, as marks have been awarded properly as per the advertisement and recruitment manual applicable to Central Reserved Police.
39. It is also pertinent to note that though the petitioners have advanced arguments challenging the selection of 15 candidates, alleging malpractice and favoritism in respect of certain candidates, none of them have been impleaded in the Writ petitions. In the absence of the selected candidates, being impleaded as a party respondents in the Writ Petitions, Mandamus prayed for cannot be issued to set at naught the selection made by the respondents.
40. The principle of law is well settled by the Apex Court in Union Public Service Commission v. S.Thiagarajan reported in 2007 (9) SCC 548, Rashmi Mishra v. M.P.Public Service Commission reported in 2006 (12) SCC 724, K.H.Siraj v. High Court of Kerala reported in 2006 (6) SCC 395, Arun Tiwari v. Zila Mansavi Shikshak Singh reported in 1998 (2) SCC 332, Iswar Singh v. Kuldip Singh reported 1995 Supp (1) SCC 179 and in many other cases. On going through the entire selection list, I do not find any favouritism or nepotism in awarding marks to the candidates and therefore, the contentions raised by the petitioner cannot be countenanced.
S.MANIKUMAR, J.
skm
41. In the result, there are no merits in the writ petitions and accordingly, the same are dismissed. No costs.
27.6.2008 Index : Yes skm/vk To,
1. The Director General of Police, Central Reserve Police Force, Lodhi Complex, New Delhi.
2. The Inspector General of Police, Southern Sector, Central Reserve Police Force, Hyderabad.
3. The Deputy Inspector of Police, GC, Central Reserve Police Force, Avadi, Chennai.
W.P.Nos.36903 & 36904 of 2004